Atlantic Mut. Ins. Co. v. McFadden
Citation | 595 N.E.2d 762,413 Mass. 90 |
Parties | ATLANTIC MUTUAL INSURANCE COMPANY v. Wendy McFADDEN & others. 1 |
Decision Date | 14 July 1992 |
Court | United States State Supreme Judicial Court of Massachusetts |
Richard L. Neumeier, Boston, for plaintiff.
Lee H. Kozol, Lowry E. Heussler, Boston, with him, for Dime Real Estate Services--Massachusetts, Inc., & another.
Robert J. Doyle, Boston, for Wendy McFadden, submitted a brief.
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.
Atlantic Mutual Insurance Company (Atlantic) commenced an action in the Superior Court, seeking a declaration of its rights and obligations under a comprehensive general liability policy issued to Dime Real Estate Services--Massachusetts, Inc., and Dime Savings Bank of New York, FSB (collectively, Dime). Specifically, Atlantic sought to determine whether it had a duty under the policy to defend Dime in an action for damages arising out of the lead poisoning of two children in property allegedly owned or controlled by Dime and leased to Wendy McFadden and her children. Relying primarily on a provision in the policy entitled "Pollution Exclusion," Atlantic alleged in its amended complaint, the relevant portions of which are set forth in the Appendix, that it did not have to defend or to indemnify Dime in the suit.
The judge determined that the pollution exclusion did not exclude coverage for the McFaddens's claims. The judge ruled that there is no language in the policy which even suggests that lead in paint, putty, or plaster is a "pollutant" within the meaning of the provision. To the extent that the provision can be read to imply that lead in paint is a pollutant for which coverage is excluded under the policy, the judge held that the provision is ambiguous and the ambiguity must "be resolved against the insurer." Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 83, 469 N.E.2d 797 (1984). The judge entered summary judgment for Dime and issued a judgment for declaratory relief, ordering Atlantic to defend and to indemnify Dime in the action filed by Wendy McFadden. Atlantic appealed. We granted Atlantic's application for direct appellate review.
On appeal, Atlantic challenges only the judge's ruling regarding the inapplicability of the pollution exclusion provision. 2 Atlantic maintains that lead in paint, putty, or plaster, although not specifically listed in the pollution exclusion as a "contaminant" or "irritant," certainly falls within either or both of those categories and therefore is properly classified as a "pollutant" for purposes of the exclusion provision. 3 We do not agree with Atlantic's interpretation. When construing language in an insurance policy, we "consider what an objectively reasonable insured, reading the relevant policy language, would expect to be covered." Hazen Paper Co. v. United States Fidelity & Guar. Co., 407 Mass. 689, 700, 555 N.E.2d 576 (1990), and cases cited. We conclude that an insured could reasonably have understood the provision at issue to exclude coverage for injury caused by certain forms of industrial pollution, but not coverage for injury allegedly caused by the presence of leaded materials in a private residence. See West Am. Ins. Co. v. Tufco Flooring East, 104 N.C.App. 312, 321-326, 409 S.E.2d 692 (1991) ( ). There simply is no language in the exclusion provision from which to infer that the provision was drafted with a view toward limiting liability for lead paint-related injury. The definition of "pollutant" in the policy does not indicate that leaded materials fall within its scope. Rather, the terms used in the pollution exclusion, such as "discharge," "dispersal," "release," and "escape," are terms of art in environmental law which generally are used with reference to damage or injury caused by improper disposal or containment of hazardous waste. West Am. Ins. Co., supra at 324, 409 S.E.2d 692.
For these reasons, we hold that the judge properly awarded summary judgment to Dime on the issue of the pollution exclusion provision. 4
Judgment affirmed.
APPENDIX.
The relevant portions of the amended complaint and of the policy are as follows:
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